Sundew Green (Private) Limited v Goliath Kagona and Provincial Mining Director

The applicant, Sundew Green (Private) Limited, was the registered owner of Flaxton Estate held under deed of transfer 1106/92, which it purchased in 1991. The property included various permanent structures including a 3-bedroomed farmhouse, 5 boreholes with pumps, cattle handling facilities, a dip tank, spray race, and other improvements. The first respondent, Goliath Kagona, owned mining claims registered as 4567 to 4574 located within the applicant's property. The first respondent had been carrying out mining activities on the farm since 2001. On 10 December 2016, the applicant received a report that the first respondent was conducting mining activities within prohibited distances from its permanent structures - specifically within 450 metres of its homestead, 39 metres from its dip tanks, 73.6 metres from its spray race, and 5 metres from its borehole. No consent had been obtained from the applicant as required by section 31 of the Mines and Minerals Act. The first respondent contended that when he registered the mining claims in 2001, the structures were dilapidated, abandoned and out of use, and that the applicant only refurbished them in 2015.

• Whether the applicant established a clear right to the interdict under section 31 of the Mines and Minerals Act [Chapter 21:05]
• Whether the permanent structures were in existence and protected at the time the first respondent commenced mining activities
• Whether consent from the landowner was required for mining activities within prohibited distances from permanent structures
• Whether the applicant had suffered actual injury or had a reasonable apprehension of injury
• Whether the matter fell within the jurisdiction of the High Court or should be referred to the Administrative Court under section 32 of the Act
• Whether there were material disputes of fact requiring oral evidence
• Whether the requirements for a final interdict were satisfied

1. The Provisional Order dated 9 January 2017 was confirmed. 2. The first respondent, together with all persons acting on his behalf, was interdicted from carrying out mining activities within: (a) 450 metres of the applicant's homestead; (b) 90 metres of the applicant's cattle dip and spray race, shades, employees' houses and fowl runs. 3. The first respondent was ordered to pay costs of suit on an ordinary scale.

The binding legal principles established are: (1) Section 31 of the Mines and Minerals Act requires miners to obtain consent from landowners before conducting mining activities within prescribed distances from permanent structures; (2) The structures protected under section 31(1) must be in existence at the time the miner exercises mining rights under a prospecting licence; (3) Structures need not be in active use to qualify for protection - as long as they are buildings with some value (more than $500), they are protected under the Act; (4) Even dilapidated buildings qualify as permanent structures requiring consent under section 31(1)(a)(iv) before mining can occur within prohibited distances; (5) Where a landowner's title to property preceded the registration of mining claims, and permanent structures existed on the property, the miner cannot conduct activities within statutory prohibited distances without consent, regardless of the condition of those structures; (6) The requirements for a final interdict (clear right, actual injury or reasonable apprehension thereof, and no other remedy) apply in mining disputes, with reasonable apprehension of injury assessed on an objective standard.

The court made several non-binding observations: (1) Section 31(2) concerning registration of intended principal homesteads was not applicable to this case as the applicant relied on existing structures, not future plans; (2) It cannot be envisaged that the legislature intended to protect structures that did not exist at the time the miner commenced exercising rights under a prospecting licence (except for registered intended homesteads); (3) Where a landowner intends to build new structures after mining has commenced, it must comply with limitations in the Act or has no recourse; (4) The court noted uncertainty about whether a letter from the fourth respondent dated 16 July 2015 was in response to the first respondent's complaint, as it referenced a borehole that was not mentioned in the complaint; (5) The court observed that costs on a higher scale were not warranted and that ordinary costs would meet the justice of the case. The court also commented that apparent material disputes of fact could be resolved on the papers without recourse to oral evidence.

This case establishes important principles regarding the interpretation and application of section 31 of the Mines and Minerals Act [Chapter 21:05] in Zimbabwe. It clarifies the rights of landowners to protect permanent structures from mining activities conducted within statutory prohibited distances, even where mining claims were registered after acquisition of the property. The case affirms that consent from landowners is mandatory before mining can occur within prohibited distances, regardless of the condition or state of use of the structures. It provides guidance on the balance between mining rights and property rights in Zimbabwe, particularly relevant given the country's significant mining sector. The judgment also demonstrates the application of interdict principles in the mining context and confirms the High Court's jurisdiction over such disputes as distinct from administrative review proceedings.